A flawed Compass: a human Rights Analysis of the Roadmap to Strengthening Public Safety

A Flawed Compass: A Human Rights Analysis of the Roadmap to Strengthening Public Safety



Michael Jackson

Graham Stewart

September 2009

Note to the on-line version

The on-line version of this report varies from the print version in that minor errors have been corrected.

Posted: September 24, 2009

About the Authors

Michael Jackson, Q.C. (LL.B (London); LL.M (Yale) has been involved in the teaching and advocacy of human rights for over 35 years, specializing in the areas of prisoners' rights and aboriginal rights. As a professor at the University of British Columbia's Faculty of Law, he introduced the first courses on these subjects in a Canadian law school; as a lawyer he has represented prisoners and First Nations in leading cases before the Supreme Court of Canada; as a representative of the Canadian Bar Association he has presented submissions on reforms to the criminal justice system to committees of both the Canadian House of Commons and the Senate. In 1993, he was awarded the Bora Laskin National Fellowship in Human Rights Research. In 1999 he was appointed Queen's Counsel by the Attorney General of British Columbia. In 2009 he was the first recipient of the Ed McIsaac Human Rights in Corrections Award. His publications include Prisoners of Isolation: Solitary Confinement in Canada (1983) and Justice behind the Walls: Human Rights in Canadian Prisons (2002) both of which are accessible online at www.justicebehindthewalls.net.

Graham Stewart, MSW retired from his position as the Executive Director of the John Howard Society of Canada in June 2007 after 38 years with the Society. JHS Canada is the national office for a network of 60 charities across Canada concerned with addressing the problems of crime and the rehabilitation of those in prisons and after release. His career began with the John Howard Society in 1969 followed by positions in Waterloo Region, Kingston and at the John Howard Society of Ontario where he was the Director of Reform Programs and in 1990 the Executive Director where he remained until being appointed to JHS as Executive Director in 1996. He has extensive experience as a counsellor, administrator and policy analyst for the Society. During the last 20 years of his career Graham was responsible for the analysis of criminal justice issues, policies and trends, prepared briefs and position papers on behalf of the Society and acted as the primary spokesperson on policy and reform matters. Topics he has addressed include issues in corrections, parole and gradual release, sentencing and sentencing alternatives, young offenders, community corrections and the voluntary sector. He has represented the JHS at hearings of Parliamentary and Senate committees, various commissions and filled other consultative roles. He has also taught courses in criminal justice at St. Lawrence College in Kingston and at the University of Ottawa.

Table of Contents

Note to the on-line version 3

About the Authors i

Table of Contents i

Preface: The Roadmap as Public Policy iv

Executive Summary viii

1 Context for the Review: Problems and Pitfalls 1

1.1 Introduction 1

1.2 3A Question of Credibility 4

1.2.1 Reasons for the Review 4

1.2.2 Mandate 5

1.2.3 Panel Members 6

1.2.4 Research 8

1.2.5 Consultations 8

1.2.6 Managing Strengths and Weaknesses 9

1.2.7 Historical Perspective 12

2 Human Rights and Corrections 14

2.1 Dignity’s Child 18

3 Faulty Premises 22

3.1 Crime in Canada 22

3.2 The Changing Offender Profile 26

4 Constitutional and Legislative Framework of Corrections 36

4.1 Refocusing the CCRA 38

4.2 Proposed Amendments to s. 4 39

4.3 Retained Rights and the Least Restrictive Principles 41

4.4 The Legal and Constitutional Context of the CCRA 43

4.5 Least Restrictive vs. Appropriate Measures 46

4.6 The Nature of Prisoners’ Rights – The Citizen Lawbreaker 48

4.7 Removing Prisoners’ Rights – A Suspect Enterprise 50

5 Conditions of Confinement 55

5.1 Context 55

5.2 The Correctional Plan 56

5.3 Segregation: The Litmus Test of Legitimacy 61

5.4 Gangs 67

6 Drugs in Prison 71

6.1 The Panel’s Approach 71

6.2 The Importance of a Humane Visiting Regime 76

6.3 Reconciling Humane Visiting with Safe Penitentiaries 78

6.4 Conclusion 90

7 Adequacy of the Inmate Disciplinary Process 92

8 Earned Parole 99

8.1 The Promise and Purpose of Statutory Release 100

8.2 Discrediting Statutory Release 103

8.3 Parole as an Alternative to Statutory Release 106

8.4 Employment as a Condition for Conditional Release 109

8.5 The Promise and Implications of an “Accountability Contract” 110

8.6 Implications for the Overrepresentation of Aboriginal Prisoners 112

8.7 The Unspecified Cost of Abolishing Statutory Release 112

8.8 Abolition of Accelerated Parole Review 113

8.9 An Implied Alternative 114

8.10 Conclusion 115

9 Education, Employment and Human Rights 116

9.1 Introduction 116

9.2 8 Employment and Employability 119

9.2.1 Scope 122

9.2.2 Feasibility 127

9.2.3 Logistics 127

9.2.4 Conclusion 128

9.3 Education 129

9.3.1 Education and Recidivism 131

9.3.2 Logistics 138

9.3.3 Costs and Benefits 139

9.3.4 Computers 139

9.3.5 Conclusion 144

10 Aboriginal Offenders 146

10.1 The Nature of the Problem - Aboriginal Overrepresentation 147

10.2 The Appropriate Remedial Response 152

10.3 Conclusion 158

11 Physical Infrastructure and Regional Complexes 159

11.1 To Build New or Replace Existing Structures 160

11.2 Regional Complexes 162

11.3 Cost 167

11.4 An Alternative Planning Approach 168

11.5 Conclusion 169

12 Rhetoric and Reality 170

12.1 Context 170

12.2 Ashley Smith and the Implications for Human Rights 178

12.2.1 What Happened 178

12.2.2 Mental Health Issues 179

12.2.3 Transfer Issues 180

12.2.4 Segregation Issues 181

12.2.5 Use of Force 182

12.3 Effects of Segregation 183

12.3.1 The Panel’s Consideration of Segregation 186

12.4 Grievances 187

12.4.1 The Panel’s Consideration of Grievances 189

12.5 Direct Accountability to the Deputy Commissioner for Women 190

12.5.1 The Panel’s Response to Direct Accountability for Women 191

12.6 Deaths in Custody 192

12.7 Conclusion 194

13 Conclusion 195